Baloch v Minister for Immigration and Border Protection

[2014] FCA 602

FEDERAL COURT OF AUSTRALIA

Baloch v Minister for Immigration and Border Protection [2014] FCA 602

Citation:	Baloch v Minister for Immigration and Border Protection [2014] FCA 602
Appeal from:	Application for leave to appeal: Baloch v Minister for Immigration & Anor [2013] FCCA 2223
Parties:	KHAN ALI MARRI BALOCH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:	VID 1366 of 2013
Judge:	JESSUP J
Date of judgment:	30 May 2014
Catchwords:	MIGRATION – application for leave to appeal from Federal Circuit Court – applicant failed to identify any jurisdictional error on the part of the Federal Circuit Court or the Migration Review Tribunal below – application dismissed
Legislation:	Federal Circuit Court Rules 2001 (Cth) r 44.12
Cases cited:	Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Date of hearing:	30 May 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	4
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondents:	N Swan
Solicitor for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1366 of 2013

BETWEEN:

KHAN ALI MARRI BALOCH
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	30 MAY 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the first respondent’s costs of the said application.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1366 of 2013

BETWEEN:

KHAN ALI MARRI BALOCH
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	30 MAY 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of the Federal Circuit Court of Australia given on 10 December 2013 pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). By that judgment, the Federal Circuit Court dismissed an application for the review of a decision of the Migration Review Tribunal (“the Tribunal”) in which the Tribunal had determined to affirm the decision of a delegate of the respondent Minister not to grant the applicant a Student Temporary Class TU Visa.

2. On an application of this nature, there are two questions which arise:  first, whether, in all the circumstances, the decision sought to be appealed from is attended with sufficient doubt to warrant it being reconsidered by a court having appellate jurisdiction; and secondly, if the decision were not so reconsidered, and supposing it to be wrong, a substantial injustice would be occasioned to the intending appellant:  Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398.

3. In the brief submissions made to me this afternoon by the applicant, the gravamen of his concern appears to be to have another opportunity to put a case on the merits before the Tribunal which he omitted to put last time.  He says he is now in a position to provide the Tribunal with all the evidence that would be necessary to demonstrate that he is carrying out a course of studies such as would sustain the grant of a visa of the kind which he seeks.  The difficulty with that submission is that it is not responsive to the legal nature of the relief which he sought from the Federal Circuit Court.  His challenge to the Tribunal’s decision in that court could not have been a challenge which proceeded on the merits.  The only question before that court was whether the decision of the Tribunal was attended by jurisdictional error.  Nothing which the applicant put to that court, and nothing which he has put to me today on the present application, provides any basis for supposing that such an error existed.  However well prepared the applicant might now be to advance a substantial case before the Tribunal, neither the Circuit Court nor this court was, or is, concerned with the possibilities in that regard.  I can only be concerned with the proceeding which was in fact conducted before the Tribunal, and with the question whether the Tribunal’s disposition of that proceeding was attended by jurisdictional error.  The Judge in the Federal Circuit Court held not, and nothing put by the applicant in support of his application for leave casts any doubt upon the correctness of that conclusion. 

4. The decision which I reach, therefore, is that the judgment below is not attended with sufficient doubt to warrant it being reconsidered on appeal, with the result that the present application must be dismissed.  I shall so order.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:       13 June 2014